People v. Fisher

• Decision Date: 06 August 1991
• Docket Number: Docket No. 119148
• Citation: 476 N.W.2d 762,190 Mich.App. 598
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Erick FISHER, Defendant-Appellant. (After Second Remand) 190 Mich.App. 598, 476 N.W.2d 762

Page 762

476 N.W.2d 762

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Erick FISHER, Defendant-Appellant. (After Second Remand)

Docket No. 119148.

190 Mich.App. 598, 476 N.W.2d 762

Court of Appeals of Michigan.

Submitted May 8, 1991, at Lansing.

Decided Aug. 6, 1991, at 9:30 a.m.

Released for Publication Nov. 18, 1991.

[190 MICHAPP 599] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., G. Michael Hocking, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for people.

Donald L. Correll, Lansing, for the defendant-appellant on appeal.

Before SHEPHERD, P.J., and WAHLS and R.B. BURNS, ^* JJ.

[190 MICHAPP 600] PER CURIAM.

This case is before this Court for a third time. On January 30, 1986, following a jury trial in the Eaton Circuit Court, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced on June 23, 1988, to a term of forty to sixty years in prison. In People v. Fisher, 166 Mich.App. 699, 420 N.W.2d 858 (1988), defendant appealed his sentence of forty to sixty years, which was far beyond the recommended minimum sentencing guideline range of seven to sixteen years. We remanded the case for resentencing, instructing the sentencing court to specifically explain on the record the reason for this considerable departure. Id. at p. 715, 420 N.W.2d 858. On remand, the sentencing court once again sentenced defendant to a term of forty to sixty years in prison. In imposing defendant's sentence, the sentencing court stated that when individuals reach the age of sixty they seldom commit violent acts. Therefore, by sentencing defendant, then age twenty-seven, to a minimum term of forty years, he would be age sixty-seven upon his release. Thus, the court concluded that the imposed sentence would give society "some degree of assurance that the defendant would not do a like act under like circumstances." See People v. Fisher (After Remand), 176 Mich.App. 316, 318, 439 N.W.2d 343 (1989).

Subsequently, we granted defendant's motion for peremptory reversal. Upon review, we found that the sentencing court's rationale for the imposed sentence was "totally inappropriate, and derogat[ed] the bases for sentence reform which underlie the promulgation of the sentencing guidelines." Id. Thus, we remanded defendant's case for resentencing before a different circuit court judge. Id.

On May 26, 1989, defendant was sentenced a [190 MICHAPP 601] third time to twenty-five to fifty years in prison. The defendant has again appealed, and we once again set aside defendant's sentence and remand this case for resentencing before yet another circuit judge.

In this appeal, defendant first argues that the sentencing court erred in failing to delete from the presentence investigation report statements made by defendant's ex-wife. We agree.

Defendant's murder conviction arose from the stabbing death of William Tappert, an acquaintance of defendant's then estranged wife, Mary Fisher, which occurred at the residence defendant and his wife once shared. The challenged statements made by defendant's estranged wife, as reported in the presentence report are as follows:

(1) [Defendant]: "Is your fucking boyfriend here? Tell him to come in here so I can stick him a couple of times."

(2) She started to cry and asked [defendant], "Did you stab him?", to which he replied, "Fuck yes I stuck him."

(3) Mary followed [defendant] out of the house and [defendant] told her to tell the police that Tappert had fallen into the knife. [Emphasis added.]

We note initially that defendant concedes that the second statement was not a privileged communication because of the presence of a third party (Ms. Fisher's son) when the communication was made. Thus, we will only consider the admissibility of the remaining two statements.

When defendant was originally sentenced in 1988, the sentencing judge granted defendant's motion to strike Mary Fisher's comments from the presentence report, pursuant to the spousal privilege doctrine. However, when this matter came [190 MICHAPP 602] before a different judge on the second remand, Mary Fisher's statements were still in the presentence report and again the statements became the subject of a motion to strike, this time with a different result.

Defendant and Mary Fisher were divorced during the period between the first and third sentencing proceedings. During the third sentencing hearing, in response to defendant's motion to strike Ms. Fisher's second and third statements, the court concluded that the spousal privilege terminated at the divorce and that, therefore, the statements were not barred by the spousal privilege doctrine. Defendant further argued that the statements were inadmissible as hearsay; however, the court admitted the statements pursuant to MRE 1101(b)(1), (3).

The spousal privilege doctrine is codified in this jurisdiction, and this Court has held:

MCL 600.2162; MSA 27A.2162 contains two distinct privileges. The first privilege, the spousal privilege, bars one spouse from testifying for or against the other spouse without the other spouse's consent where the witness and the spouse are married at the time of trial. The second privilege, the confidential communication privilege, bars one spouse from testifying as to any communications made by one to the other during the marriage without the consent of the other spouse. The communication privilege applies whether the testimony is sought during the marriage or afterwards, as long as the communication occurred during the course of the marriage. [People v. Zak, 184 Mich.App. 1, 17, 457 N.W.2d 59 (1990). Citations omitted. Emphasis added.]

Thus, in Michigan, we distinguish two types of marital privileges: a spousal privilege, which precludes a spouse from testifying against the other [190 MICHAPP 603] spouse during the marriage and does not survive the dissolution of the marital relationship, and a confidential communications privilege, which is absolute and precludes a spouse from testifying with regard to any confidential communication that occurred during the marriage irrespective of a subsequent divorce.

After a careful review of the record, we conclude that the sentencing court erred in determining that the confidential communications privilege did not survive defendant's divorce. Therefore, the third statement at issue, which was a request by defendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege. An element of confidentiality is implicit in a request to tell a lie.

During the sentencing procedures, the sentencing court ruled that while it would consider the second and third statements for sentencing purposes, it would not consider the first statement. Specifically, the court stated that with the exception of the second and third statements, "I can say that [the remaining statement is] her opinion and her version versus his version and it would not affect the outcome of the sentence of this court." However, the first statement was not deleted from the presentence report.

Our court rules provide that if the sentencing court finds merit in a challenge to information contained in the presentence report, the court is not to take the challenged information into account in sentencing, and "it must direct the probation officer to correct or delete the challenged information in the report...." MCR 6.425(D)(3)(a). Here, because the sentencing court clearly indicated that it would not use Mary Fisher's first statement for sentencing purposes, consistent with the court rule, that statement should have been [190 MICHAPP 604] stricken from the presentence report. People v. Newson (After Remand), 187 Mich.App. 447, 450, 468 N.W.2d 249 (1991); People v. Swartz, 171 Mich.App. 364, 379-381, 429 N.W.2d 905 (1988).

Thus, because of the error in sentencing attributable to the sentencing court's reliance on the statement barred by the confidential marital communications doctrine and the failure to strike from the presentence report challenged information that the court determined it would not use in imposing defendant's sentence, we vacate defendant's sentence and instruct the sentencing court to delete Mary Fisher's first and third statements from the presentence report.

In a related issue, defendant argues that although he was convicted of second-degree murder, the sentencing judge made statements at the sentencing hearing that indicated his belief that defendant's actions were premeditated. In other words, defendant argues that the sentencing court erroneously sentenced him for a charge of which he was acquitted, namely, first-degree murder.

During the sentencing hearing, in reliance upon Mary Fisher's first statement, as reported in the presentence report, the sentencing court stated as follows:

I also made some findings that [defendant] intended to stab [the victim]. There's no question in my mind, it was intentional.

* * * * * *

I spelled it out that when [Mary Fisher]--on page 4, where there's a statement by her that, "Is your fucking boyfriend here? Tell him to come out here so I can stick him a couple of times." That's almost premeditated talk. Most importantly then when you get on page 5, when she asks, "Did you stab him?" He replied, "Fuck yes, I stuck him."

[190 MICHAPP 605] That's intentional. That's gross. That's not an accidental matter.

We simply note that the information utilized by the sentencing court in reaching the conclusion that the murder for which defendant was convicted was premeditated is the same information that the sentencing court ruled would not be used in considering an appropriate sentence for defendant. On remand, the first statement must be stricken from the presentence report.

Next, defendant contends that the retroactive application of the revised sentencing guidelines to the sentence on appeal here was a violation of his constitutional right to due...